The Human Rights
Committee, established under article 28 of the International
Covenant on Civil and Political Rights,

Meeting on 29
July 1997,

Adopts the following:

Decision on admissibility

1. The author of the
communication, dated 21 September 1995, is Gonzalo Bonelo Sánchez,
a Spanish citizen living in Seville, Spain. He claims to be a victim
of violations by Spain of articles 14, paragraph 1, and 26 of the
International Covenant on Civil and Political Rights. The Optional
Protocol entered into force for Spain on 25 April 1985. The author
is represented by counsel, Mr. José Luis Mazón Costa.

The facts as submitted
by the author

2.1 On 29 August 1984,
the author, a fully qualified pharmacist, requested an authorization
to open a pharmacy from the Association of Pharmacists in Cádiz
(Colegio Oficial de Farmacéuticos de Cádiz). He sought to
open a pharmacy in a suburb of San Roque, Cádiz and based his request
on the requirements of Royal Decree 909/78 (Real Decreto
909/1978). His request was denied by the decision of 10 October
1985, on the ground that the new pharmacy was not sufficiently far
from the town nucleus to be separated by a natural or artificial
barrier. The author filed an appeal with the Spanish General Council
of Official Colleges of Pharmacists (Consejo General de Colegios
Oficiales de Farmacéuticos), which was also dismissed, on 14
May 1986.

2.2 The author then
filed an administrative complaint (recurso contencioso administrativo)
with the Territorial Court (Audiencia Territorial) in Seville.
On 20 January 1989, the General Council's administrative decision
of 14 May 1986 was reversed, on the ground that the requirement
of the separation was illegal as it was derived from a 1979 Ministerial
Order (Orden Ministerial), which could not supersede a Royal
Decree; the author was authorized to open his pharmacy.

2.3 The Spanish General
Council of Official Colleges of Pharmacists (Consejo General
de Colegios Oficiales de Farmacéuticos) in turn filed an appeal
with the Supreme Court of Spain (Tribunal Supremo). On 25
March 1991, the decision of the Territorial Court (Audiencia
Territorial) was quashed and the author was denied the disputed
authorization. In its judgment, the Supreme Court accepted that
Royal Decree 909/78 only required that the new pharmacy give service
to a population of over 2,000 people, whereas the Ministerial Order
required, additionally, that the new nucleus of population be separated
from the existing township by a natural or physical barrier. The
Court held that a Ministerial Order could not supersede a Royal
Decree, as this would breach the principle of hierarchy; but it
went on to argue that the requirement of separation had not been
complied with fully in the author's case.

2.4 On 8 July 1994,
a Special Chamber of the Supreme Court (Sala Especial del Tribunal
Supremo) dismissed the author's further appeal (recurso de
revisión). The author's subsequent appeal (recurso de amparo)
before the Constitutional Court was declared inadmissible on 13
February 1995.

The complaint

3.1 The author claims
that the Supreme Court's judgment of 25 March 1991 was arbitrary
and denied him the right to equality before the courts, in violation
of article 14, paragraph 1. In this respect, his lawyer contends
that the Supreme Court has traditionally ruled in favour of the
opening of pharmacies, and encloses copies of two judgments to this
effectJudgments of the Third Chamber of the Supreme
Court of 19 September 1983 and 28 February 1986, which interpret
Royal Decree 909/1978 in an extensive manner, i.e in favour of the
principle "pro aperture".. However, counsel himself states
that the Supreme Court judgment declared that the jurisprudence
invoked did not correspond with the facts of the author's case.

3.2 Counsel claims a
further violation of article 14, paragraph 1, in respect of the
denial of the author's appeal (recurso de amparo). In this
respect, he alleges that the judges on the Constitutional Court
do not themselves decide the question of inadmissibility, but that
decisions are routinely prepared by a team of lawyers (cuerpo
de letrados) who work for the Constitutional Court, and that
the judges simply sign the decisions. Finally, counsel claims that
the author was denied a fair hearing by the Constitutional Court
when it dismissed his request for amparo, as only the Public
Prosecutor's Office (Ministerio Fiscal) was given the possibility
to appeal.

3.3 The author claims
that as the result of unjust and partial judicial decisions, together
with the application of legislation which he claims to be a relic
of medieval times, only applied to pharmacists in the exercise of
their profession as dispensers of medicinal goods, he has been subjected
to discrimination, in violation of article 26 of the Covenant.

Issues and proceedings
before the Committee

4.1 Before considering
any claims contained in a communication, the Human Rights Committee
must, in accordance with rule 87 of its rules of procedure, decide
whether or not it is admissible under the Optional Protocol to the
Covenant.

4.2 The Committee has
carefully examined the material submitted by the author and refers
to its established jurisprudenceSee inter alia
the Committee's decision in communication No. 58/1979 (Anna Maroufidou
v. Sweden, paragraph 10.1; Views adopted on 9 April 1981.) that
interpretation of domestic legislation is essentially a matter for
the courts and authorities of the State party concerned. In the
present case, the author has not substantiated his claim that the
law was interpreted and applied arbitrarily or that its application
amounted to a denial of justice which could constitute a discrimination
in violation of article 26 of the Covenant, the Committee considers
that the communication is inadmissible under article 2 of the Optional
Protocol.

4.3 With regard to the
author's claim of a violation of article 14, paragraph 1, of the
Covenant in respect of the dismissal of his appeal by the Consitutional
Court, the Committee has carefully examined the material submitted
by the author. It considers that the author's counsel does not substantiate,
for purposes of admissibility, how the fact that the Office of the
Public Prosecutor (Ministerio Fiscal), in defence of the
general interest of the public, may appeal against the rejection
of a recurso de amparo or how the way in which the Constitutional
Court organizes its agenda and conducts its hearings would constitute
a violation of the author's right to a fair hearing within the meaning
of article 14, paragraph 1, of the Covenant.

5. The Committee therefore
decides:

(a) that the communication
is inadmissible;

(b) that this decision
shall be communicated to the author and his counsel and, for information,
to the State party.

[Adopted in English,
French and Spanish, the English text being the original version.
Subsequently to be issued also in Arabic, Chinese and Russian as
part of the Committee's annual report to the General Assembly.]